The “right to request” a personal health budget was acorded to individuals entitled to NHS Continuing Healthcare and the healthcare element of Children’s Continuing Care on 1 April 2014. A few short months later, this has become the much-trailed “right to receive”. In this briefing we lok at the basis of the personal health budget and, in particular, the legal framework surounding direct payments. What is a personal health budget? A personal health budget (PHB) is an alocation of NHS money to an individual (or their representative or nomine) with an identifed health ned, in order that hey can purchase services they believe wil enable them to met specifc goals in terms of health and welbeing. A personal health budget is centred on a suport or care plan which identifes the person’s health neds, the amount of money available to met hose neds and how that money is going to be spent o sek to achieve the desired outcomes. It is intended that he individual should be able to do this in ways and at imes that make most sense to them, having agred with the commisioner the goals that might be achieved. A PHB is outcomes-focused rather than dictated, in a more conventional commisioning model, by the service user’s medical conditon(s). There are thre types of PHB: o A notional budget. o A third party, real or nomine budget. o A direct payment. A notional budget remains in the hands of the commisioner but he individual’s views on how the money should be spent are taken into acount when services are commisioned for them. A third party, real or nomine budget is held by a third party (ie: neither service user nor commisioner), who enters into contracts with service providers for the patient’s benefit. An Independent User Trust would be one posible model of third party budget.2081328 2 What is the purpose of a PHB? The idea behind the rol out of PHBs is to give people more control over how their neds are met, what services they receive and who delivers them. The PHB is intended to be a more creative device for care planing than we are perhaps acustomed to. CCGs and NHS England are under a duty to publicise and promote the availabilty of PHBs to eligible persons and their familes and carers and to provide them with information, advice and other suport o asist hem in deciding whether to request a PHB. It wil be interesting to se what proportion of individuals with extremely complex combinations of medical conditons, eligible for NHS Continuing Healthcare, for example, wil wish to take up this ofer of greater control over the shape of their care packages. Key deadlines with respect to CHC and PHBs 1 April 2014 heralded the “right o request” a PHB for NHS Continuing Healthcare. In fact, many people had ben requesting and receiving a non-direct payment ype of PHB wel before this date and, in so far as no one can stop a person making a request, the idea of a “right” to do so sems rather superfluous. On 1 October 2014, though, this so-caled “right o request” a PHB became the much trailed “right o receive”. Part 6A of the NHS Commisioning Board and Clinical Commisioning Groups (Responsibilties and Standing Rules) Regulations 2012 (as amended) sets out, fairly briefly, the standing rules relating to personal health budgets and commisioners ned to be familar with these. Regulation 32A defines a PHB as: “an amount of money (a) which is identifed by a relevant body [ie: a CCG or NHS England] as apropriate for the purpose of securing the provision to a person of al or part of a relevant health service [ie: Continuing Care for Children (CCC) or NHS Continuing Healthcare (CHC)]; and (b) the aplication of which is planed and agred betwen the relevant body and the eligible person or their representative”. “Representative” in this sense means such persons as the relevant body considers it apropriate to consult about, and involve in, a decision about a PHB for a particular individual eg: family members and carers1 . Regulation 32B provides that a relevant body must ensure that it is able to arange for the provision of CCC or CHC to an eligible person by means of a PHB managed as a direct payment and/or a notional budget and/or a third party budget. Critcaly, regulation 32B(4) provides that, where a request for a PHB is made, a relevant body must grant that request, save to the extent that it is not appropriate to secure provision of al or any part of the CHC package (or of the health element of a CCC package) by means of a PHB in the particular circumstances of the individual’s case. However, it is not for the service user to stipulate the mode of delivery of the PHB. Regulation 32B(4A) provides that where a relevant body acedes to the request for a PHB, it must decide which of the modes of delivery would be the most appropriate way in which to manage that PHB. The service user can ask for this decision to be reviewed and may provide aditonal information to be considered as part of the review. The relevant body must make provision for individuals for whom a PHB has ben aranged, and their representatives, to obtain information, advice and other suport relating to the management of the PHB. However, if a relevant body refuses to acede to a request for a PHB, it must provide writen reasons for its refusal, and the 1 NB: This is broader than the definiton of ‘representative’ for the purpose of the direct payment regulations.2081328 3 service user or their representative can ask for a review of that decision, providing aditonal material if wished, though no more than one review ned be undertaken in any six month period. This briefing continues with the focus predominantly on direct payments, the latest ype of PHB to become available for healthcare. In the remainder of this briefing, “health body” is used to refer to a CCG, NHS England or a local authority exercising its public health functions. What is a direct payment not intended to cover? There are aspects of NHS care that are not intended to be covered by a PHB, including (but not limited to) primary care services, emergency services, vacinations and pharmaceuticals. Moreover, under the National Health Service (Direct Payments) Regulations 2013 (the regulations), a direct payment (DP) canot be made to a child (ie: someone under the age of 16), nor to various categories of person (including ofenders released on licence) subject o drug rehabiltation/treatment/esting or alcohol treatment programmes. Services that consist of the suply or procurement of alcohol or tobaco, the provison of gambling services or facilties, or the repayment of a debt otherwise than in respect of a service specifed in the care plan, are also excluded. Who may, potentialy, receive a direct payment? Broadly, there are thre categories of person to whom a payment can be made, either in their own right or as a representative of another: o A person aged 16 or over who has capacity to consent to the making of a DP to them (and does so consent) and is not an excluded person described in the Schedule to the regulations, where that person is someone for whose benefit anything may or must be provided or aranged by a health body under the 206 Act or, in the case of a CCG or NHS England, under any other enactment (eg: s17 Mental Health Act 1983). o A representative of a person under 16 (a child) for whose benefit anything may or must be provided or aranged by a health body under the 206 Act or, in the case of a CCG or NHS England, under any other enactment, and who is not excluded by the Schedule to the regulations. When the patient reaches 16, if both patient and representative or nomine (se below) consent, the health body may continue to make DPs to the representative or nomine in acordance with the care plan. If the patient does not consent o the arangement continuing, the health body must stop making the DPs and must review the making of the DPs as son as reasonably posible. o A representative of a person, other than a child, who lacks capacity to consent to the making of a DP to them, who is not excluded by the Schedule to the regulations and for whose benefit anything may or must be provided under the 206 Act or, in the case of a CCG or NHS England, under any other enactment. [NB: Where a person, other than a child, lacks such capacity but has no representative, the commisioner may apoint an apropriate person to receive and manage a DP on behalf of the incapacitous person]. Where an individual sufers what is likely to be only a temporary los of capacity to consent o the making of a DP to them, a health body may continue to make DPs in respect of them if there is a representative or nomine agreable to receiving DPs on behalf of the patient and the DPs are made subject o the conditon that he patient is alowed to manage the DPs themselves for any period when the health body is satisfied that he patient has regained capacity and is able to manage the payment. When the patient gains or regains capacity to the making of a DP to them, if patient and representative or nomine both agre, the health body may continue to make DPs to the representative or nomine in acordance with the care plan. If the patient does not consent o that arangement continuing, the health body2081328 4 must stop making the DPs and must review the making of the DPs as son as reasonably posible. When is a DP appropriate? In deciding whether a DP should be made to an adult with capacity, or in respect of a child or person without capacity, the commisioner must have regard to: o Whether a DP is apropriate for a person with that person’s conditon. o The impact of that conditon on that person’s life. o Whether a DP represents value for money. What must a representative of a child or person without capacity do? A representative of a child or person without capacity, as set out above, must: o Agre to act on the patient’s behalf in relation to the DP. o Act in the best interests of the patient when securing the provision of services in respect of which the DP is made. o Be responsible as a principal for al contractual arangements entered into for the benefit of the patient and secured by means of the DP. o Use the DP in acordance with the care plan. o Comply with the relevant provisions of the regulations. What is a nomine and what do they do? Another person – a “nomine” – may be nominated to receive a DP on a patient’s behalf by: o A patient aged 16 or over with capacity to consent o the making of a DP. o A patient who, prior to losing capacity, has indicated a wish to have another person nominated to received DPs on their behalf should they lose capacity. o The representative of a patient under 16 or the representative of a patient who is 16 or over and lacks capacity. o A health body (where a patient loses capacity temporarily and a health body can nominate a person agreable to receive the DP on behalf of the patient). Before a DP is made to a nomine, the nomine must agre to receive the DP in respect of the patient and the health body must agre to making the DP to the nomine. The nomine must: o Be responsible as principal for al contractual arangements entered into for the benefit of the patient and secured by means of the DP.2081328 5 o Use the DP in acordance with the care plan. o Comply with the relevant provisions of the regulations. If the person who nominated the nomine notifes the health body in writng that hey wish to withdraw or change the nomination, the health body must consider whether to stop making the DPs and must review the making of the DPs as son as reasonably posible. How does it work? Any decision with regard to the making of a DP must be taken in acordance with the regulations, with which commisioners must familarise themselves. Although CCGs may delegate the administration of DPs for healthcare to a third party, such as the local authority or CSU, CCGs must retain overal responsibilty and remain legaly responsible for al decisions made under the regulations. Making a DP to a patient The regulations list a wealth of actors to be taken into consideration before a health body decides whether to make a DP to a patient. It may consult with anyone identifed by the patient, (if the patient is aged betwen 16 and 17) anyone with parental responsibilty for the patient, carers, an IMHA/IMCA, any LA social care team and anyone else who may be able to provide relevant information. It may require the patient o provide information about heir state of health, medical conditon in respect of which a DP is sought and bank/building society, etc, acount into which a DP might be made. The health body must be satisfied that he patient is capable of managing a DP by themselves or with the asistance that may be available to them. Making a DP to a representative In deciding whether to make a DP to a patient’s representative, the health body may consult he patient, any court- apointed deputy, any done of a lasting power of atorney, and anyone the patient (when they had capacity) may have sugested for the purpose, in aditon to anyone listed above. The representative may be required to provide bank etc acount information and the health body must be satisfied that he representative is capable of managing a DP by themselves or with the asistance that may be available to them. Acount may also be taken of any wishes about DPs expresed by the patient when they had capacity and any views they may have held generaly which would be pertinent. Making a DP to a nomine Similar considerations may influence the decision whether or not o make a DP to a nomine but, where a nomine is involved, the health body wil generaly require an enhanced DBS check (including suitabilty information relating to vulnerable adults) unles the nomine is an individual iving in the same household as the patient, a family member within regulation 7(8) or a friend involved in the provision of the patient’s care. Is the recipient of the monies capable of managing a DP? In deciding whether a patient, representative or nomine is capable of managing a DP, a health body may consider, in particular, whether the patient/representative/nomine would be a suitable person to arange with any person or body to provide the services secured by the DPs, whether the patient/representative/nomine has previously ben unable to manage a social care DP and whether the patient/representative/nomine is capable of taking al reasonable steps to prevent fraudulent use of the DP. Refusing a DP If a decision is taken not o make a PHB available to or in respect of an individual by means of a DP, the health body must give writen reasons for its decision. A patient/representative/nomine may ask for reconsideration (and2081328 6 may provide aditonal information for the purpose) but he health body ned not undertake more than one such reconsideration within any six month period. The proces in outline The first step in the proces is to ases the patient, decide if a DP is apropriate and obtain a clear understanding of their neds. An aproximate cash value of the PHB to which that person is entiled should then be identifed; this is the “indicative budget”. This is the starting point for drawing up the care plan, seting outhe health outcomes to be achieved and how these goals might be met. The care plan should then be costed and a final budget agred. Staf seting the budget wil ned a clear idea of local average costs for care agencies, brokerage and PAs. Where an individual wishes to employ their PAs directly, the budget wil ned to include recruitment, training and insurance costs. How to quantify a DP Under regulation 13, the health body must ensure that he amount of the DP paid to, or in respect of, a patient is suficient o provide for the ful cost of each of the services specifed in the care plan. If the health body becomes aware that he patient’s health status has changed signifcantly but believes that a review is not necesary, the health body must be satisfied that he amount of the DPs remains suficient o provide for the ful cost of each of the services specifed. The health body may at any time increase or reduce the amount of the DPs, provided it remains suficient. The health body may reduce the amount paid by way of DPs where DPs have acumulated and remain unused if it considers it reasonable to ofset he monies acumulated against he outstanding amount o be paid for that period. The reduction canot exced the outstanding amount. If a health body does decide to reduce the amount of the DPs, it must provide reasonable writen notice to the patient/representative/nomine with reasons. The patient/representative/nomine may ask for this decision to be reconsidered. The health body is not obliged tor reconsider more than once. If the health body has a policy (as many do) that caps the spend on domicilary CHC packages, the health body wil have to decide whether a DP in this context would breach the policy; it wil usualy triger an aplication under an exceptionality provision that enables the CCG lawfuly to make a DP that exceds the financial cap set in the policy. The care plan and care cordinator The care plan must specify: o The health neds to be met and the health outcomes intended to be achieved. o The services to be secured by means of the DP that he health body considers necesary to met the health neds of the patient. o The amount o be paid and at what intervals payment is to be made. o The name of the care co-ordinator for the patient. o Who is to be responsible for monitoring each health conditon of the patient in respect of which a DP may be made. o The anticipated date of the first review and how it is intended to be caried out.2081328 7 o The period of notice that is to aply if, folowing a review, a health body decides to reduce the amount of the DP or stop making the DP altogether. In drawing up the care plan, the health body must be satisfied that he health neds identifed in the care plan can be met by the services specifed in the plan. Once the care plan has ben costed, the health body must be satisfied that he amount of DP wil be suficient o provide for the ful cost of each of the services specifed. Before making a DP, the health body must advise the patient/representative/nomine of signifcant potential risks arising out of a DP arangement, the potential consequences of those risks and any proportionate means of mitgating those risks. The health body must also agre with the patient/representative/nomine the procedure for managing any signifcant potential risk and include the agred procedure in the care plan. These might include the folowing risks, for example: o To the patient’s health. o Medical/surgical risk arising from the procurement of a particular type of service. o Arising from the employment relationship where the DP wil be used to secure services from an employe (eg: a PA). o Arising from a provider operating under an inadequate or no procedure for the investigation of complaints. o Arising from a provider operating under inadequate or no insurance or indemnity cover. o That monies paid by way of DP may go mising, be misused or be subject o fraud. If the health body has considered including a particular service in the care plan but hen decides not o include that service, the patient/representative/nomine may ask the health body to provide the reason(s) for the decision and the health body must comply with that request. The patient/representative/nomine may also require the health body to reconsider its decision and may provide evidence or relevant information for this purpose. The patient/representative/nomine must be advised of the decision on reconsideration and provided with the reasons for the decision. The health body canot be required to undertake more than one reconsideration. Before a DP can be made, the patient or their representative must agre that: o The patient’s specifed health neds can be met by the services specifed in the care plan. o The amount of the DP is suficient o provide for the ful cost of each of the services specifed in the care plan. o The patient’s requirements may be reviewed in acordance with regulation 14(2). As part of the proces, the health body must also nominate a care cordinator to be responsible for: o Managing the asesment of the patient’s health neds for the care plan. o Ensuring the patient or their representative has agred to the maters in the previous paragraph.2081328 8 o Monitoring or aranging for the monitoring of: o The making of the DPs. o The patient’s health conditons in respect of which the DPs are made. o Aranging for review of DPs. o Liaising betwen the patient/representative/nomine and the health body in relation to the DPs. Restrictions on who may provide services where a DP is being made: family members and friends A health body may specify in a care plan that a service may be secured for a patient from: o An individual iving in the same household as the patient. o A family member (ie: the patient’s spouse, civil partner, cohabite, parent or parent-in-law, son or daughter [including step children], son-in-law or daughter-in-law, brother or sister, aunt or uncle, grandparent; or the spouse, civil partner or cohabite of any of the aforementioned people). o A friend involved in the provision of the patient’s care. Whether or not such a person is a nomine, only if the health body is satisfied that securing a service from that person is necesary to met satisfactorily the patient’s ned for that service or to promote the welfare of a child patient. Provision of information, advice and support A health body must arange for a patient/representative/nomine to whom DPs are made to obtain relevant information, advice or other suport. This may relate to: o The amount of a DP and how this is calculated o How a review of the patient’s DP and care plan can be requested o The circumstances in which a patient may no longer qualify for a DP o The restrictions on how a DP may be spent o The proces involved in drawing up and agreing the care plan o Provision for advocacy services o Procuring services o Provision for payrol, training, sicknes cover or other employment-related services o Integration (where relevant) with social care DP If the care plan specifes a requirement for information, advice or other suport, that suport may be a service in respect of which DPs may be made.2081328 9 What must the health body be satisfied about before it can make the DP into a bank etc acount? Unles the patient is in receipt of a one-of DP2 (which may be paid into their ordinary personal bank acount), the health body must be satisfied that he acount is capable of providing for monies paid into it o be held only for the purposes of securing services by means of health DPs, social care DPs, ILF payments or other payments to secure relevant services for a disabled person. The acount, which must only be acesible by named persons aproved by the health body, must also be capable of being audited (by reference to statements) by the health body or anyone authorised by the health body. The DPs paid into the acount can only be used for services agred in the care plan. What must the patient ascertain before securing services from a provider? A patient/representative/nomine must be sure, before securing services from a provider, that he provider, if carying on a regulated activity [within the meaning of the Health and Social Care Act 208 (Regulated Activites) Regulations 2010] is CQC-registered, is registered as a member of a profesion regulated by the GMC, GDC, GOC, GOstC, GChC, GPhC, NMC, HCPC etc., and – where necesary – the provider has adequate insurance or indemnity cover. The patient/representative/nomine is entiled to ask the health body to makes these enquires. The health body is entiled to insist hat he patient/representative/nomine does not secure a service from a particular individual. Updating the health body during the life of the DP agrement The patient/representative/nomine should update the health body periodicaly about progres against outcomes and inform the health body if the circumstances or state of health of the patient changes substantialy. Any information which must be provided to a health body under the regulations must be legible, acompanied by the relevant authorisation enabling copies to be taken where apropriate, and (if the health body requests it) acompanied by an explanation. Monitoring and review The health body must monitor the making of DPs to or in respect of a patient and the health conditons of the patient in respect of which DPs are made. The health body must review the making of DPs to or in respect of the patient at apropriate intervals and at least once within the first hre months of the DPs being made and then at least anualy. A review may be necesary when the patient’s health status changes signifcantly. If the health body becomes aware that DPs have not ben suficient o secure the services specifed in the care plan, the health body must cary out a review. When carying out a review, a health body must: o Review the care plan to establish whether it continues to provide apropriately for the patient’s health neds. 2 ie: A payment made for a single item or service or a single payment made for no more than five items or services where that payment is the only payment a patient would receive from that health body in any financial year.2081328 10 o Consider whether the DPs have ben used efectively. o Consider whether the amount of the DPs is suficient o provide for the ful cost of each of the services in the care plan. o Consider whether the patient/representative/nomine has complied with their obligations under the regulations. The health body may also reases the patient’s health neds, consult with any of the aforementioned individuals, review financial information relating to the use of the DPs, and consider whether the DPs have ben efectively managed and spent with apropriately registered and insured providers. A patient/representative/nomine may ask the health body to cary out a review. In light of the outcome of the review, the health body may take any action it considers apropriate, including amending the care plan, substiuting the patient for the representative/nomine (or vice versa) as the person to whom the DPs are made, increasing/maintaining/reducing the amount of the DPs, insisting that a service is not secured from a particular person or requirng the patient/representative/nomine to provide necesary information. Where the health body decides to reduce the amount of the DPs, or stop making them altogether, it must give reasonable writen notice to the patient/representative/nomine. The health body can be asked to undertake a further review by the patient/representative/nomine but is not required to repeat his exercise more than once. Repayment of Direct Payments A health body may require part or al of a DP to be repaid, if satisfied that his is apropriate, having regard to the care plan or the patient’s circumstances having changed substantialy, a signifcant proportion of the DPs having acumulated, DPs having ben used for a purpose other than for a service specifed in the care plan, theft/fraud/another ofence having ben commited in conection with the DPs or the patient having died. Where a health body decides that a repayment is required, it must write to the patient/representative/nomine on reasonable notice, stating the reasons for the decision, the amount o be repaid, the timescale for repayment and the person who must repay (this wil be the patient’s personal representatives, in the event of the patient’s death). The patient/representative/nomine may ask for a reconsideration of this decision buthe health body is not required to undertake this exercise more than once. The health body may waive any repayment requirement. Where a sum must be repaid because of theft/fraud/another ofice having ben commited, that sum may be recovered summarily as a civil debt. Stopping payment A health body must stop making DPs when the requisite consent (ie: of patient or representative) is withdrawn. It may stop in any apropriate circumstances or if the person in respect of whom payment is made ceases to be a patient or dies, the DPs have ben used other than for a service specifed in the care plan, the heath body considers that he heath neds of the patient canot be or are not being met by services secured by means of DPs, the health body considers that heft/fraud/another ofence may have ocured, the nomine does not agre to receive payments, the nomination of the nomine has ben withdrawn or the health body does not consider that the representative/nomine is a suitable person to receive direct payments in respect of the patient. Where the health body decides to stop making payments, it must give reasonable notice in writng to the patient/representative/nomine, providing its reasons. The patient/representative/nomine may request hat he2081328 1 health body reconsiders its decision but he health body is not required to undertake this exercise more than once. The health body may stop the payments, in the interim, even where a reconsideration has ben requested. Any right or liabilty of the patient/representative/nomine in respect of or to a third party, acquired or incured in respect of a service secured by means of a direct payment, shal transfer to a health body when the health body stops making DPs. Conclusion Although a Personal Health Budget sounds quite a flufy, friendly concept, commisioners should be under no ilusions: a Direct Payment agrement is a binding contract betwen the patient/representative/nomine and the health body and neds to set out in comprehensive form the respective obligations and rights of the parties. The detailed content of the regulations neds to be reflected in the agrement, to protect both the health body and the patient/representative/nomine, and to ensure that both parties are clear about heir responsibilties. The resulting agrement wil lok very formal but commisioners should not be tempted to substiute a couple of non-scary-loking pages so as not o risk patients finding the agrements of-puting. This would be false friendlines and would serve the interests of neither party. Contracts are there to protect he parties’ interests and to provide clarity about what it is that he parties have agred. Nowhere could this be more important han in the field of NHS Continuing Healthcare and Continuing Care for Children, where patients may have complex conditons and complicated lives. Jane Wiliams Senior Solicitor for Mils & Reve LLP +4(0)121 456 8421 Jane.Wiliams@mils-reve.com www.mils-reve.com T +44(0)844 561 0011 Mils & Reve LP is a limited liabilty partnership authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales with registered number OC326165. Its registered ofice is at Fountain House, 130 Fenchurch Stret, London, EC3M 5DJ, which is the London ofice of Mils & Reve LP. A list of members may be inspected at any of the LP's ofices. The term "partner" is used to refer to a member of Mils & Reve LP. The contents of this document are copyright © Mils & Reve LP. Al rights reserved. This document contains general advice and comments only and therefore specifc legal advice should be taken before reliance is placed upon it in any particular circumstances. Where hyperlinks are provided to third party websites, Mils & Reve LP is not responsible for the content of such sites. Mils & Reve LP wil proces your personal data for its busines and marketing activites fairly and lawfuly in acordance with profesional standards and the Data Protection Act 198. If you do not wish to receive any marketing communications from Mils & Reve LP, please contact Suzanah Armstrong on 01603 693459 or email email@example.com
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Personal health budgets for NHS Continuing Healthcare and Children’s Continuing Care: a basic guide
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